Playing Partisan Politics with Terrorists and Torture

Approximately one week ago, President Obama made the dumbest move in a series of almost non-stop stupid moves since his inauguration, and it remains to be seen whether he will be able to avoid being sucked in and crushed in the whirlwind of his creation.

I'm speaking of his inexplicable decision to release four memos drafted by Bush administration attorneys in the Department of Justice's Office of Legal Counsel (OLC), which detailed how and when enhanced methods of interrogation could be used on captured terrorists -- terrorists whose conduct and organization clearly places them well outside the agreed upon protocol for the treatment of prisoners of war.

The rationale for this move -- extraordinarily harmful to national security because it reveals methods that should not be known to our enemies -- doesn't merit credence. The president contended that after three hard weeks of internal debate by his team, he decided that since so much of the information in the misnamed "torture" memos had already been made public, he should release them in response to an ACLU suit. This was utter nonsense. As Steven Aftergood, the Federation of American Scientists' expert on the law of secrecy noted, this would not be an adequate defense of a criminal charge of unlawful disclosure of classified information. And former CIA Director Michael Hayden has publicly stated that the government should not have disclosed the memos and that it could have successfully defended the demand for their release. The ACLU says it's pushing for more memos to be made public. It remains to be seen how quickly Obama can learn from his already substantial mistake in releasing some of what the ACLU asked for.

Taking the most charitable view possible, this was, as Tom Maguire notes, an act of "cheap grace" from a man who was:

committed to public campaign finance as an important principle of fair elections [and] dropped that principle as soon as it became helpful to him to do so. And he would drop this "no torture" rhetoric just as quickly if someone that mattered to him was [affected] by it. I am just troubled by his current eagerness to pretend that the safety of the good [people] of the United States is not a priority.

The manner of the release shows the president's lack of executive experience and that he is already -- in the important area of national defense -- hopelessly naïve, uncoordinated, and irrational. It shows that his claim of being post-partisan and above the fray is risible, because he has now unleashed the most bitter national partisan knife fight of our lifetime and one that may well sink him. It shows that his constant claim that he intends to look forward not backward is a lie, because he will try to distract from his increasingly unpopular domestic policies by continuing to demonize the prior administration and selectively leaking classified information to this end.

How do the president's actions define him as a failure?

The disjointed handling of the issue is a mark of his lack of executive experience, a critical failure in the area of national defense.

As the president released the memos, C.I.A. Director Leon Panetta sent a letter to his agents:

In releasing these memos, the men and women of the CIA have assurances from both myself, and from Attorney General Holder, that we will protect all who acted reasonably [emphasis supplied] and relied upon legal advice from the Department of Justice that their actions were lawful. The attorney General has assured me that these individuals will not be prosecuted and that the government will stand by them.

This can hardly be of much comfort to those agents who realize that the government is now in the hands of those who'd sacrifice whole cities for some naïve notion of a moral high ground, which will make our enemies love us and cease their aggression. Such men are not likely to feel the need to worry much about the lives and safety of those who were tasked to save us and did so honorably and within the bounds of the law when the threat appeared more immediate.

The president's chief of staff also offered specific reassurance that there would be no prosecutions of the authors of the legal memos. But when the results of the Senate Armed Services Committee Investigation respecting water boarding (something more anti-war demonstrators than U.S. detainees have endured, and something regularly used in our Survival Evasion Resistance Escape (SERE)program to prepare our troops for treatment if captured) came up, Obama said he'd leave the question of prosecution of the memos' authors and former administration officials to his attorney general.

Surely the White House had to be aware that this report was coming down. Doesn't the White House also have a legislative liaison with the Democrats in Congress to get a heads up on reports like this? And if he did get a heads up why did he allow his chief of staff to say there would be no prosecutions and then right afterward suggest there might be some?

Instead of a post-partisan president, we have one who is unleashing the most bitter partisan battle of our lifetime.

Cornell law professor William A. Jacobson notes that the the authors of these memos should not be criminally prosecuted for expressing legal opinions. Nor, Jacobsen says, should Alberto Gonzales, John Yoo, or Jamie Gorelick (author of the now infamous "wall" memo that surely contributed to 9/11) be prosecuted. There is no evidence that any of these people simply concocted their opinions out of thin air, the only way such a claim could be successfully prosecuted.